Guerrero v. Ashcroft, 00-3306

• Decision Date: 13 June 2001
• Docket Number: No. 00-3306,00-3306
• Citation: 253 F.3d 309
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: (7th Cir. 2001) Antonio Guerrero, Plaintiff-Appellant, v. John Ashcroft, <A HREF="#fr1-1" name="fn1-1">1 Attorney General of the United States, Defendant-Appellee

Page 309

253 F.3d 309 (7th Cir. 2001)

Antonio Guerrero, Plaintiff-Appellant, v. John Ashcroft,¹ Attorney General of the United States, Defendant-Appellee.

No. 00-3306

In the United States Court of Appeals For the Seventh Circuit

Argued February 15, 2001

Decided June 13, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 864--Rebecca R. Pallmeyer, Judge. [Copyrighted Material Omitted]

Before Bauer, Kanne,² and Rovner, Circuit Judges.

Bauer, Circuit Judge.

Antonio Guerrero, an Hispanic FBI agent, sued the Attorney General under Title VII for disparate treatment based on race and national origin. The district court granted summary judgment for the Attorney General, finding that Guerrero failed to create a factual issue regarding the FBI's business reasons for declining to promote him. We affirm the district court.

I. Background

Guerrero applied for a promotion to a GS-14 level supervisor of one of the FBI's Organized Crime Squads ("OC-3 Squad") in the Chicago division in 1997. The twenty-person squad investigates non- traditional organized crime. The FBI posted the job opening which stated in relevant part:

Candidate selected will be expected to maintain effective liaison with a large number of local, state and federal law enforcement agencies. As Squad OC-3 is touted as the repository for intelligence regarding international criminal enterprises, effective liaison is critical. Selectee will be expected to continue the employment of sophisticated investigatory techniques such as consensual monitoring, Title III's, UCO's, and proactive investigative strategies to combat significant crime problems. Due to the burgeoning problem in Chicago of Nigerian heroin trafficking organizations, candidates should be well versed in drug investigations; be fully experienced in the CIP; have proven track record of developing major cases using a proactive and task force approach. Emphasis will be placed on strong leadership, interpersonal and administrative skills. . . . (Candidates must have at least 3 years FBI investigatory experience . . . and relief supervisory (preferably principal relief) experience.

Four agents applied for the OC-3 job: Guerrero, Gabe Casanova, an Hispanic agent, Thomas Bourgeois, a white agent, and William Wong, an Asian agent.

The FBI was fortunate to have four highly qualified applicants. Guerrero served as a police officer for seven years and as an agent in the FBI for twelve years before applying for the OC-3 promotion. During his FBI tenure, Guerrero built a record of exceptional performance and received numerous awards. From 1984 to 1988, Guerrero conducted drug investigations and performed other related duties for the FBI's El Paso, Texas division. In 1998, Guerrero transferred to the Chicago division, where he worked in the Mexican Drug Traffickers Squad. Guerrero accepted a promotion to the Squad's relief supervisor and also assisted with investigations into Asian drug trafficking. Two years later, in 1990, Guerrero transferred to the Drug Intelligence Squad where he continued to serve as a relief supervisor and was promoted to principal relief supervisor. Guerrero coordinated joint investigations with the DEA. He then transferred to the Organized Crime Drug Enforcement Task Force where he: acted as the principle relief supervisor; recruited and debriefed informants; acted as an undercover agent; conducted interviews, arrests and surveillance; engaged in controlled buys; and executed search warrants. Further, he acted as the informant coordinator, a job he accepted because his supervisor told him it could lead to a promotion. In 1994, Guerrero became the team leader and relief supervisor of the Forfeiture Team. In 1995, Guerrero assumed the duty of coordinating the Chicago Law Enforcement Intelligence Center, chairing twice- weekly meetings among 15 agencies for the exchange of intelligence information.

The Chicago division was sufficiently impressed with Guerrero's performance in the Forfeiture Team that it asked him to head all the division's forfeitures, which required supervising paralegals, but no agents. After assurances from his supervisors that the transfer would not hurt his changes of being promoted to a GS-14 level position, Guerrero accepted. He excelled in the position. His program became the model for others in the Chicago division and Guerrero himself was tapped to train program coordinators around the country. Guerrero was working as Forfeiture Coordinator when he applied for the OC-3 position.

Casanova was the acting supervisor with the Intelligence Squad. Between 1981 and 1986, he worked on drug investigations in Chicago. Bourgeois's experience since 1986 was concentrated in traditional organized crime and corruption investigations. He also developed some operational techniques, served as lead agent on major cases, and acted as the principal relief for his squad. Wong had worked in the OC-3 Squad since 1986, and was the principle relief supervisor in 1997. He had experience dealing with complex cases.

In selecting the candidate to promote, the FBI followed highly structured procedures. The Career Board solicited resumes from and conducted interviews with each of the applicants, asking all applicants the same questions. Using a matrix form, the Board evaluated the candidates by rating their experience in the skill areas the OC-3 position required. The skill ratings were, in order of descending value, "outstanding," "excellent," "superior," and "limited." The Career Board rated as "limited" Guerrero's experience with drug investigation, sophisticated investigatory techniques, and leadership skills, as well as his overall accomplishments with the FBI. It rated his liaison experience as "excellent," an area in which he shared the highest score with Bourgeois. The Career Board also provided a narrative explanation of each candidate's ratings. Overall, the Career Board ranked Bourgeois first, Wong second, and Casanova third. Explaining its ranking of Guerrero, members of the Career Board recognized his good performance, but stated that Guerrero's experience was administrative rather than investigative or operational. Further, they believed that Guerrero had overstated his success in the forfeiture program because his increase in collections was partially due to developments in the law. The Special Agent in Charge ("SAC") of the Chicago office considered the Career Board's recommendation and decided to recommend agent Wong. The SAC did not comment on Guerrero's skills, but explained that he recommended Wong for the job because Wong already worked on the OC-3 squad and the SAC wanted to reward Wong's good work. Given the SAC's choice, the Career Board decided to swap its first and second choices, recommending Wong as its top pick and moving Bourgeois to second. These recommendations went to the national Special Agent Mid-Level Management Selection Board ("SAMMS Board") which decides who to promote, relying heavily on the recommendations of the Career Board and SAC. In this case, the SAMMS Board promoted Wong.

Believing himself to be the victim of discrimination, Guerrero completed the required procedures with the EEOC and sued the FBI for declining to promote him based on his race and national origin in violation of Title VII. He hired an expert whose statistical analysis tended to show that the FBI discriminated against Hispanic and Black officers when it decided who to promote to GS-14 level positions in the Chicago office.

The FBI moved for summary judgment, admitting that Guerrero established a prima facie case of discrimination, but arguing that it had nondiscriminatory reasons declining to promote Guerrero. Guerrero argued that the proffered reasons constituted pretext. The district court held that Guerrero established a prima facie case and that the FBI countered with legitimate business reasons for declining to promote him. The court then granted summary judgment in favor of the FBI on the grounds that Guerrero failed to raise a genuine issue of fact regarding the FBI's proffered reasons for its decision.

II. Discussion

We review the district court's grant of summary judgment de novo and draw all reasonable inferences in favor of Guerrero, the non-moving party. See Bell v. E.P.A., 232 F.3d 546, 549 (7th Cir. 2000). We will affirm the grant of summary judgment only if there is no genuine issue as to any material fact and if the moving party, the Attorney General, is entitled to judgment as a matter of law. See id. Guerrero has appropriately proceeded under the McDonnell-Douglas burden shifting test. Because we believe that Guerrero proved his prima facie case, see Brill v. Lante Corp., 119 F.3d 1266, 1270 (7th Cir. 1997) (discussing prima facie elements in a failure to promote context), we focus on the second and third steps of the test: whether the FBI has proffered legitimate business reasons for its decision, and whether Guerrero has marshaled evidence that could lead a reasonable trier of fact to reject those reasons as pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2108-09 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973).

A. Guerrero's Evaluations

The FBI asserts six business reasons explaining why it opted not to promote Guerrero: (1) the OC-3 position prioritized "street" skills above administrative skills like those Guerrero possessed; (2) Guerrero lacked pertinent leadership experience; (3) Guerrero lacked recent drug investigation experience; (4) Guerrero lacked recent relief supervisor experience; (5) Guerrero lacked recent experience withsophisticated investigatory techniques; and (6) Guerrero overstated his success in the...